Click & Comply Operations License Agreement
LICENSE MASTER AGREEMENT & TERMS OF SERVICE
IMPORTANT NOTICE TO USER:
THIS DOCUMENT STATES THE TERMS UPON WHICH THE SERVICES (AS DEFINED BELOW) OFFERED BY LEONARDO247, INC. ARE PROVIDED TO INDIVIDUALS OR ENTITIES WHO USE OR SEEK TO USE THE SERVICES. USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF ALL OF THE TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN. USE OF THE SERVICES IS CONDITIONED UPON USER’S ACCEPTANCE OF THIS LICENSE AGREEMENT & TERMS OF SERVICE (“AGREEMENT”) IN ITS ENTIRETY.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES CONTRACTUALLY, IN WHICH CASE THE TERMS “LICENSEE”, “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1. CREATION OF LICENSE
1.1 General. This Agreement is between Leonardo247, Inc. (“Licensor”) and (“Licensee” or “you”) and is effective upon its Effective Date (defined below).
1.2 Licensed Services. Licensor owns the products, software, services “Services”) made available through the Leonardo247.com website and any successor websites subject to this Agreement. The Services include operations performance management software that assists users in the automation of processes and tasks and that contains features such as automated best practices, paperless inspections and checklists, document management, workflows, dashboards and reporting. The Services also contain abstracts of certain municipal codes relating to regularly recurring duties in order to facilitate compliance with those codes but does not include any legal interpretation of those codes or recommendations to remain in compliance, nor does it include codes governing construction specifications or regarding specific conditions or methods that are mandated or actions that are prohibited. Licensee desires to acquire from Licensor, and Licensor desires to grant to Licensee, a license to exercise certain license rights with respect to the Services as set forth in this Agreement.
By executing this Agreement, Licensee shall be deemed to have executed the applicable license agreement as agent for each of the Licensee-affiliated properties listed on Exhibit “B” to the order form (each known as an “Affiliated Property”). Licensee represents and warrants that it has all necessary authority to bind each Affiliated Property to the terms of this Agreement and that upon entering into this Agreement on behalf of an Affiliated Property, this Agreement will be binding upon the corresponding Affiliated Property owner (“Owner”). Licensee agrees to be directly responsible for any breach of the foregoing warranty. During the Term, Licensee can, at any time with a minimum of 30 days notice, add or remove properties to the list of properties by sending an email that indicates the properties to be added or removed or by adding the properties directly to their portfolio list via the Services. These actions will not affect the Term. Licensee shall be responsible for all charges through the notice period without monthly proration for any Affiliated Property that is removed. Billing for the services shall be detailed for each property entity but shall be consolidated into one bill and sent to Licensee designated billing contact. Licensee will in turn pay the entire consolidate invoice but may elect do so with separate electronic or check payments from each individual property entity.
1.3 Grant of License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor, a limited, personal, nonexclusive, non-assignable, non-sublicensable, and revocable license to use the Services for Licensee’s property management purposes only (and not as a competitor of Licensor nor for any purposes or reasons that are adverse to, or can reasonably be expected to compete with, Licensor and/or the Services) pursuant to all of the terms of this Agreement.
1.4 Services. Licensor may provide, and Licensee may elect to receive or benefit from, additional Services from time to time. The Services and any additional Services are subject to Licensor’s additional terms as they may be presented and modified from time to time and may be incorporated by reference into this Agreement as agreed upon.
1.5 Enhancements. Licensor may offer separate product offerings and extensions, additional modules or third-party add-on products not included as part of the core functionality of the Services (“Enhancements”). Enhancements may involve optional or mandatory functionality. The pricing offered to Licensee shall be as stated in the Order Form but upon any renewal of the Agreement, Licensor may charge additional fees for Enhancements and the terms regarding Enhancements may fall under separate license agreements to be agreed upon.
1.6 Nature of License. The Services are licensed, not sold, to Licensee by Licensor for use only under the terms of this Agreement, and Licensor reserves all rights not expressly granted to Licensee. Licensee acknowledges and agrees that Licensee’s entering into this Agreement is neither contingent on the delivery of any future features or functionality nor subject to any written or oral statements made by Licensor regarding future features or functionality.
1.7 No Other Rights. Except as explicitly provided in this Agreement, no license under any patents, copyrights, trademarks, trade secrets, or any other Intellectual Property Rights (defined below), express or implied, are granted by Licensor to Licensee under this License. This Agreement does not grant any ownership right, title or interest, nor any security interest or other interest, without limitation, in any Intellectual Property Rights relating to the Services (including any source materials) nor any copy thereof. For the purposes of this Agreement, “Intellectual Property Rights” means copyrights (including the right to use, reproduce, modify, distribute, publicly display, and publicly perform the copyrighted work), trademarks (including trademark, trade names, service marks, and trade dress), patents (including the exclusive right to make, use, and sell), trade secrets, rights of publicity, rights of privacy, moral rights, goodwill, and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether those rights have been registered or otherwise publicly recorded or recognized, and regardless of whether such rights arise under the laws of the United States or any other state, country or other jurisdiction.
2. LICENSE TERM AND LICENSE FEES
2.1 License Term. This Agreement commences upon the execution of an Order Form which acknowledges the acceptance of the terms in this Agreement (the “Effective Date”) and shall remain in effect for the initial term, specified in the accompanying Order Form (“Initial Term”), unless earlier terminated as provided herein. Upon the expiration of the Initial Term, this Agreement shall automatically be renewed for additional one (1) year periods (the “Renewal Term”) unless otherwise elected by either party by providing written notice to the other received at least thirty (30) days prior to the expiration of the Term as then in effect. The Initial Term and any Renewal Terms are collectively referred to as the “Term”.
2.2 Charges and Payment of Fees. Licensee shall pay all applicable fees or charges to Licensee’s account in accordance with the fees, charges, and billing terms of the applicable Order Form in effect at the time when that fee or charge is due and payable, which charges may include applicable sales, use and other taxes as stated on the Order Form or required by local law. Licensor may adjust the monthly fee as stated in the Order Form based on the number of Licensee’s Affiliated Properties active in the Services at the end of each month and may invoice Licensee accordingly. All amounts paid are nonrefundable but any overpayments due to a reduction in the number of properties managed by Licensee shall be applied to future billings. Licensee is responsible for paying for all Services ordered for the entire Agreement Term, whether or not such Services are actively used.
2.3 Configuration Services. During the term of the Agreement, Licensor shall provide at no additional charge support assistance to Licensee associated with the property database setup, review any existing policies and procedures and prepare custom action item templates, on-demand instructions, document manager defaults, custom forms and other data elements (the “Configuration Services”) .
3. TERMINATION AND SUSPENSION
3.1 Termination. This Agreement, as it pertains to Licensee and each Licensee-affiliated property listed on Exhibit B to the order form, is effective until terminated as provided herein. To the fullest extent permitted by law, your rights under this Agreement shall terminate automatically upon notice from Licensor if you fail to comply with any term(s) of this Agreement. Licensor may also terminate or this Agreement if you become subject to bankruptcy proceedings, become insolvent, or make an assignment for the benefit of Licensee’s creditors. Licensee may terminate this Agreement upon any material breach of this Agreement by Licensor that is not cured within thirty (30) days following written notice thereof. Upon the termination of this Agreement, Licensee shall cease and discontinue all use of the Services.
3.2 Inactive Users. If your account is inactive for a period of at least six consecutive months, Licensor may deactivate your account. Deactivated accounts are placed in storage and can be restored, but they may be deleted. Licensor shall notify you by email if your account is deactivated.
3.3 Suspension. In addition to Licensor’s right to terminate under Section 3.1, if you (a) fail to make a payment to Licensor and such payment default is not cured by you within ten (10) days of the date on which the payment was originally due or (b) otherwise fail to comply with the payment provisions of this Agreement or other terms relating thereto, and such non-payment default is not cured by you within thirty (30) days of the date on which such non-payment default occurred, Licensor may, at its sole discretion, elect to provide limited access to the Services and its functionality and features in a read-only mode until Licensee complies with this Agreement
3.4 Database Release. Upon termination Licensee shall have the right to receive a copy of Licensee’s data including all properties, action item history, and notes. The data shall be provided in a .CSV format. Such a request for a copy of Licensee data must be made in writing within 90 days of termination and shall be delivered to Licensee within 30 days of the request. Following the expiration of the 90-day time period following the termination of the Agreement, or upon providing a copy of the data to the Licensee, whichever is earlier, Licensor shall destroy all Personal Information in its possession. Notwithstanding the foregoing, the Licensor may retain, subject to the confidentiality obligations hereunder (a) Personal Information of the Licensee or electronic records containing such Personal Information for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity purposes; and (b) copies of the Personal Information of the Licensee which the Licensor may be required to maintain under applicable law or regulation or for internal auditing and compliance purposes.
3.5 Database Transfer. Upon termination or removal of a property per Section 1.2, Owner authorizes Licensor to transfer Affiliated Property data including but not limited to all properties, action item history, and notes, to a different Licensee who signs an Agreement to use Services for the Affiliated Property.
4. CONTENT, ACCOUNT DATA, USER CONTENT, AND INTERACTIVE AREAS
4.1 Limited License of Content Accessed through Services. Licensor grants Licensee a limited, revocable, non-exclusive, non-sublicensable license to access the Services and to view, copy and print the portions of the information, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement available to you through the Services (the “Content”). Such license is subject to this Agreement, and specifically conditioned upon the following: (a) you may only view, copy and print such portions of the Content for your own use or the use of the Licensee-affiliated properties listed on Exhibit B to the order form; (b) you may not modify or otherwise make derivative works of the Content, or reproduce, distribute or display the Content except as expressly permitted in this Agreement; (c) you may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (d) you may not use any data mining, robots or similar data gathering or extraction methods; and (e) you may not use the Services or the Content other than for their intended purpose. You hereby acknowledge and agree that the Content is proprietary to Licensor and that any use by you absent the license granted hereunder would constitute infringement of Licensor’s copyright in the Content.
4.2 Registration Data and Other Information Provided by Licensee. Licensee agrees to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Services (“Registration Data”); (b) maintain the security of usernames and passwords; (c) maintain and promptly update the Registration Data, and any other information Licensee provides to Licensor, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided by Licensee. Licensee is responsible for all activity on its account for Services, and for all charges incurred by Licensee in connection with the Services. Licensor acknowledges and agrees that all Registration Data is strictly confidential. Licensor shall use the same degree of care it uses to protect the confidentiality of its own confidential information of like nature, but no less than a reasonable degree of care, to maintain in confidence Licensee’s Registration Data. Licensor may disclose Registration Data to its employees, contractors or agents (i) only in accordance with and for purposes contemplated by the Agreement, and (ii) only to the extent such person has a need to know the Registration Data for the purposes of performing his or her obligations under or with respect to this Agreement or as otherwise naturally occurs in such person’s scope of reasonability.
4.3 Licensor’s Rights to User Content. Licensee grants Licensor, its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from any and all information, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement that Licensee posts, inputs, uploads or otherwise provides to Licensor in connection with using the Services (“User Content”) so that Licensor can provide the Services to Licensee. Licensee grants Licensor, its affiliates and subsidiaries a non-exclusive, royalty-free, perpetual, transferable right to use the User Content solely in an aggregated, anonymized form that does not individually identify Licensee, in order to provide other services to Licensee and to Licensor’s other customers. Licensee represents and warrants that to the best of its knowledge it owns and controls all of the rights to the User Content that it posts, distributes, or otherwise provides, and that it otherwise has the lawful right to post, distribute, and provide that User Content, to or through the Services. Licensee further represents and warrants that the use and posting or other transmission of such User Content does not violate this Agreement, will not violate any rights of or cause injury to any person or entity and that Licensee shall remain directly responsible for any damages resulting from the posting or transmission of such User Content.
4.4 Interactive Areas. The Services may include discussion forums, bulletin boards, review services or other forums in which you or third parties may post reviews or other content, messages, materials or other items on the Services (“Interactive Areas”). In the event the Services provide such Interactive Areas, you are solely responsible for your use of such Interactive Areas and use them at your own risk. User Content submitted to any public area of the Services will be considered non-confidential. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any User Content that: (a) violates Licensor’s then existing policies including those regarding Interactive Areas and/or User Content; (b) contains downloadable software or malicious code, or content or links to web sites that contain content (or further links to content) which may be construed as illegal, unethical, defamatory, obscene, hateful, libelous, or that otherwise may reflect negatively upon Licensor’s reputation or that of Licensor’s customers, or that infringes upon or violates the rights of any third party.
5.3 External Requirements. You agree to comply with any applicable data usage and privacy policies implemented by any entity by which you are employed or for whom you perform services on a contract basis.
5.4 CCPA. Licensor agrees to comply with the California Consumer Privacy Act of 2018 (“CCPA”) requirements that apply to Licensor. The parties acknowledge and agree that Licensor is a “service provider” as such term is defined in the CCPA in connection with the processing of information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular User, tenant, or household, to the extent such information is subject to the CCPA (“Personal Information”). Licensor shall process Personal Information only to provide the Services under the Agreement. The parties acknowledge and agree that the Services encompass any required, usual, appropriate or acceptable activities relating to the Services, including without limitation to (i) carry out the Services or the business which the Services are a part; (ii) carry out any benefits, rights and obligations relating to the Services; (iii) maintain records relating to the Services; and (iv) comply with any legal or self-regulatory obligations relating to the Services. Licensee will be responsible for responding to any access or other rights requests from individuals related to Personal Information. To the extent necessary for Licensee to fulfill its obligations under the CCPA, Licensor shall provide reasonable ad-hoc assistance as necessary for Licensee to fulfil its obligation under applicable privacy law to respond to consumer requests, provided that Licensee shall reimburse Licensor for any such assistance beyond providing self-service features included as part of the Services at Licensor’s then-current professional services rates, which shall be made available to Licensee upon request. Notwithstanding anything to the contrary in this Agreement, the parties acknowledge and agree that the exchange of Personal Information between the parties in connection with this Agreement does not form part of the consideration exchanged between the parties in respect of this Agreement or any other business dealings.
6.1 Functionality Limitations. THE SERVICES ARE NOT A SUBSTITUTE FOR A PROPERTY MANAGER OR PROPERTY OWNER’S OWN PROPERTY MANAGEMENT OPERATIONS, RISK MANAGEMENT PROGRAM, LIFE SAFETY PROTOCOL OR BUILDING MAINTENANCE SCHEDULE NOR ARE A SUBSTITUTE FOR LICENSEE’S PROFESSIONAL JUDGMENT, EXPERIENCE, TRAINING, OR INDEPENDENT TESTING. THE SERVICES SHOULD NOT BE RELIED UPON FOR PROFESSIONAL, PERSONAL, LIFE SAFETY, RISK MANAGEMENT, LEGAL OR FINANCIAL DECISISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR PROPERTIES, SITUATION, AND MANAGEMENT PROGRAM. PERSONS USING THE SERVICES ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE SERVICES AND THE RESULTS OF USING THE SERVICES.
6.2 Security. Licensor does not warrant that the Services or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack. Because of the inherent insecurity of the Internet and the need for hosting services, Internet intermediaries, Internet service providers, and other service providers, reliability of the Services and security of information and data cannot be assured. By using the Services you accept these risks, and the responsibility for choosing to use a technology that carries with it security and reliability limitations.
6.3 Internet Use and Electronic Communications. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Licensor is not responsible for any delays, delivery failures, or other damage resulting from such problems and you accept and acknowledge these risks and limitations. Credits to be awarded in the case of service outages are further described in the attached Exhibit A Service Level Agreement.
6.4 Third-Party Sites and Content. The Leonardo247.com website and any successor websites (the “Site”) may contain links to third-party Web sites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information, including information pertaining to vendors such as contractors, payment processors and other service providers. You use the links to Third-Party Sites and any Third-Party Content or service provided there, at your own risk. Licensor makes no claim or representation regarding Third-Party Content or Third-Party Sites, and provides them or links to them only as a convenience. Inclusion in the Services of a link to a Third-Party Site or Third-Party Content does not imply Licensor’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. Licensor accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites. When you leave the Services, the terms of this Agreement no longer govern. Licensee should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation it feels necessary or appropriate before proceeding with any transaction with any third party.
6.5 Open-Source Materials. Certain components of the Software include third party open-sourced software or program code (“Open-Source Materials”). The Open-Source Materials are licensed according to their own licensing terms and additional disclaimers, and Licensee’s use of such material is governed by their respective terms. Licensee acknowledges and agrees that Licensor has no responsibility for, and makes no representations or warranties regarding such Open-Source Materials or Licensee’s use of Open-Source Materials.
6.6 Service Level Standards. The Leonardo247.com website and certain components of the Software (as defined herein) are subject to certain service level standards which is attached as Exhibit A.
7.1 Reverse Engineering and Other Restrictions. Licensee shall not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the software component of the Services (the “Software”) or any other part or portion of the Software and/or Services, as applicable. Licensee agrees that the Software contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright and patent protection, and that Licensee will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Software may be reproduced in any form or by any means. Licensee shall not otherwise, in whole or in part, sublicense, copy, rent, loan, prepare derivatives of or any copy of the Software or Services. Licensee may be subject to prosecution and damages for breach of these restrictions. Licensee shall ensure that its employees, independent contractors, representatives and outside vendors do not violate the terms of this Agreement.
7.2 Third Party Access. Licensee shall not make the Services available to any person other than qualified employees and independent contractors to whom Licensor has provided user names and passwords and who are required to have such knowledge for normal use of the Services (“Authorized Users”). Licensee shall not allow any other third party to have access to the Services without Licensor’s prior written consent, which may be withheld in Licensor’s discretion if (a) such third party is affiliated with any vendor which markets, services, and/or develops computer software programs similar to the Licensed Materials; or (b) Licensor has reason to believe that such third parties will not abide by the confidentiality provisions and other pertinent provisions herein.
7.3 Circumvention. Licensee shall not utilize any equipment, device, software or other means to circumvent or remove any form of technical protection used by Licensor in connection with the Software and the Services. Licensee shall not utilize any equipment, device, software or other means to circumvent or remove any usage restrictions, or to bypass or delete any technical protection preventing the unauthorized copying, use, installation of, or access to the Software and the Services.
7.4 Confidentiality. Each party agrees that during and after the existence of this Agreement it will hold in strictest confidence and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other party. The term “Confidential Information” shall mean all non-public information, whether business or technical in nature, that the other party designates as being confidential, or which under the circumstances of disclosure ought to be treated as confidential and shall include (but is not limited to) information concerning business methods, business plans, new product launches, customer and vendor information, internal policies and procedures and pricing and other financial information. Neither party shall disclose the terms or conditions of this Agreement without the prior written consent of the other party, except (i) as may be required by applicable law or (ii) to its employees, affiliates, contractors or agents who have a specific need to know such information and are under a written obligation of confidentiality at least as restrictive as that contained in this Section. Notwithstanding the foregoing, information will not be deemed confidential if it (i) was known to the receiving party, and such information was acquired through proper methods, prior to its receipt from the disclosing party, as evidenced by written records of the receiving party; (ii) is now or (through no act or failure on the part of the receiving party) later becomes generally known through no breach of this Agreement by the receiving party; (iii) is supplied to the receiving party by a third party that is free to make that disclosure without restriction; or (iv) is independently developed by the receiving party without use of or reference to any Confidential Information provided by the disclosing party. The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving party, provided that in each such case the receiving party provides the disclosing party with prompt written notice of such order or requirement and reasonably assists the disclosing party in obtaining a protective order or other appropriate relief.
8. DISCLAIMERS OF WARRANTIES AND LIABILITY
8.1 Disclaimer of Warranties. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT LICENSEE’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. THERE ARE NO WARRANTIES (A) AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION, (B) AGAINST INFRINGEMENT, (C) THAT THE SERVICES OR SOFTWARE, AS EACH MAY BE PROVIDED UNDER THIS AGREEMENT, WILL FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS, AND (D) WITH RESPECT TO DEFECTS IN THE INFORMATION OR SOFTWARE THAT AN EXAMINATION SHOULD HAVE REASONABLY REVEALED. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTIBILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE QUALITY, ACCURACY, AND NONINFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER OF SUCH SERVICES.
8.2 Limitations of Liability. LICENSOR SHALL NOT BE LIABLE FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR ANY ORDER OR THE OPERATION OR USE OF THE SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST LICENSEE BY ANY THIRD PERSON, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY LICENSOR TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND LICENSOR’S REASONABLE CONTROL; OR (C) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST LICENSOR MORE THAN ONE YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LICENSOR’S TOTAL LIABILITY UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE UNDER THIS AGREEMENT.
8.3 Reliance on Disclaimers. Licensor and Licensee acknowledge that Licensor has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Licensor and Licensee agree that the limitation and exclusions of liability and disclaimers specified in this Agreement will survive any apply even if found to have failed their essential purpose.
9. ARBITRATION OF DISPUTES
9.1 Arbitration Clause. Any and all disputes between the Licensor and Licensee will be resolved by arbitration (and the parties hereby consent to personal jurisdiction over them) in the County of Los Angeles, California, in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association. The arbitration will be heard and decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party shall be entitled to reimbursement from the other party of reasonable attorneys’ fees and costs. The arbitration will be kept confidential except as may be required by law or regulation.
10. MISCELLANEOUS PROVISIONS
10.1 Entire Agreement. This Agreement and any other terms referenced in this Agreement constitute the entire agreement between the parties (and merges and supersedes any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof. You acknowledge that, in entering into this Agreement, you are not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in this Agreement. Terms stipulated by Licensee in any communication by Licensee which purport to vary from this Agreement or such other terms will be void and of no effect unless agreed in a writing signed by an authorized representative of Licensor. Any other modifications to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of Licensor.
10.2 Governing Law and Venue. The validity, construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of California except as to its principles of conflicts of laws. Licensor and Licensee agree that this Agreement is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (UCITA), or any references to the United National Convention on Contracts for the International Sale of Goods.
10.3 Equitable Relief. Notwithstanding Section 9.1, Licensor and Licensee acknowledge and agree that upon Licensee’s breach or threatened violation of Licensor’s Intellectual Property Rights, Licensor shall be entitled to seek injunctive or other equitable relief in addition to any and all remedies available to Licensor at law.
10.4 No Waiver. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach
10.5 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.
10.6 Agreement Construction. Ambiguities in this Agreement will not be construed against the drafter.
10.7 Severability. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the rest of this Agreement, which shall remain in full effect and enforceable.